Bringing ISIL to justice

A vital step in establishing accountability for war crimes in Iraq but with inevitable tensions ahead: Kevin Dent and Serena Gates
examine the workability of UN Security Council Resolution 2379

Even should the conflict in Iraq one day be finally over, it will not be over for the hundreds of thousands of Iraqi citizens who will suffer the effects for many years to come, scarred by the brutality metered out by the so-called Islamic State in Iraq and the Levant, or ISIL. Thanks to the Security Council’s unanimous adoption of Resolution 2379, which requests the creation of an independent investigation team tasked with holding the terrorist group accountable for its actions in Iraq, there is increasing hope that the consequences will also be felt by those who perpetrated these crimes.

The announcement represents a triumph for campaigning lawyers such as Amal Clooney, who has mounted a tenacious high-profile campaign on behalf of her client Nadia Murad. Murad is part of Iraq’s Yazidi community who was captured by ISIL in Iraq in 2014. She suffered a horrific ordeal being raped and sold as a sex slave by ISIL and is now a goodwill ambassador for the UN. As a spokesperson, she has brilliantly and courageously turned the degradation inflicted upon her and others into a fierce and powerful anger and desire for justice. This, however, is only part of the tapestry of grave crimes committed by ISIL in Iraq against the populations under their control.

Framework: establishing the case against ISIL

Under the Resolution, the investigation team would collect, preserve, and store evidence of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group in Iraq. The Resolution lays out the basic, very serious case against ISIL: ‘Condemning the commission of acts by ISIL involving murder, kidnapping, hostage-taking, suicide bombings, enslavement, sale into or otherwise forced marriage, trafficking in persons, rape, sexual slavery and other forms of sexual violence, recruitment and use of children, attacks on critical infrastructure, as well as its destruction of cultural heritage, including archaeological sites, and trafficking of cultural property…’

Rightly, this preamble focuses on the criminal acts allegedly perpetrated by the group rather than on any ideological/religious views held by the perpetrators. The case is presented as a series of offences that constitute the most serious possible breaches of fundamental norms and rights. Indeed, the only express reference to religion is in relation to offences ‘motivated by religious or ethnic grounds’, recognising that it is particularly heinous for crimes to be committed because the victims are of a different religious or ethnic group to the perpetrators. The framework is set out thus: those under investigation will be assessed and judged for their alleged serious criminal acts and regardless of their ideological views and purported justifications. Indeed, such perspectives are irrelevant when it comes to assessing whether grave crimes have been committed.

The Resolution also indicates that all members of ISIL are potentially criminally responsible – holding ‘ISIL members accountable’ – though naturally there is reference to, and focus on, those who bear the greatest responsibility including ‘regional or mid-level commanders, and the ordering and commission of crimes’. Given the reverses and casualties suffered by the group, it will be interesting to see how many regional or mid-level commanders will ultimately be available for trial. This problem is compounded by the abundance of higher level commanders that are foreign fighters, operating under pseudonyms in areas where their true identities are not known to local communities. The focus might then shift to those who, although not even mid-level commanders in the traditional sense, enjoyed a significant level of autonomy and who committed particularly serious criminal acts. All are potentially accountable, none are immune.

Potential tensions: investigation, cooperation, safety

An evidence-gathering role for the investigative team is set out in para 2 as follows: ‘collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes… to the highest possible standards... to ensure the broadest possible use.’ This process will be a daunting one and it will be interesting to see how the material collected from social media sources is used in conjunction with primary evidence. Those perpetrating heinous acts in Iraq appeared to do so in as public a way as possible. Indeed, the publicising of them online became, in the twisted logic of the group, an instrument of propaganda so the prospect of using of such material to bring perpetrators to account is particularly apt. The use of platforms like Twitter and Facebook by those seeking to encourage, support and incite others to commit grave crimes through tweets and posts may also feature prominently. This would, though, require cooperation between investigators and the international companies ‘holding’ this electronic evidence, not all of whom are renowned for willing compliance with law enforcement agencies requests to yield data.

The importance of promoting the investigation throughout the world and working together with survivors is emphasised (para 3). This will also be a daunting task considering that large cities like Mosul – with an estimated population of over 600,000 in 2015 even after a large proportion of the population had fled – came under the control of the group. This will be a transnational task given the number of Iraqis forced to flee to other countries.

It is envisaged that Iraqi investigative judges, and other criminal experts, including experienced members of the prosecution services, will work on an equal footing alongside international experts (para 5). It will be interesting to see how well this cooperation develops. The recent precedents for Iraqi criminal justice are not all positive. For instance, the Iraqi High Tribunal – established under Iraqi national law to try Iraqi nationals or residents accused of genocide, crimes against humanity, war crimes or other serious crimes committed 1968-2003 – had many critics and included capital punishment as a sentencing option. There were also issues regarding the fairness of the proceedings, and concerning the security of judges and other parties involved in the cases. Indeed, a number of speakers from different member states endorsing the Resolution expressed an expectation that the investigation would operate within a framework respecting human rights and international law, and without capital punishment.

It also remains to be seen how much power, energy and resources the government of Iraq will be willing to extend to this investigation, particularly in a context of an ongoing conflict and with a country facing huge challenges in terms of rebuilding infrastructure and overcoming sectarian divisions within society. Indeed, one potential area of tension will be the extent to which an investigation into ISIL would put additional focus on such divisions.

There is also, perhaps, a certain latent tension between the primacy of an Iraqi government-led investigation on the one hand, and the need for international expertise on the team on the other. Paragraph 8 states ‘… the Team should ensure its Iraqi members benefit from international expertise on the Team, and make every effort to share knowledge and technical assistance with Iraq…’ For countries such as the UK, how such assistance would fit with the Iraqi record of implementing the death penalty remains unclear. Equally, para 9 encourages member states and intergovernmental organisations to provide appropriate legal assistance and capacity building to the government of Iraq in order to strengthen its courts and judicial system. It may be expected that considerable legal assistance and capacity building will be required to ensure that the capacity of the investigation is commensurate with the daunting challenges outlined above.

Interestingly, para 11 envisages that other member states in whose territory ISIL has committed acts that may amount to war crimes, crimes against humanity, or genocide, may request the investigation team to collect evidence of such acts. It follows that the investigation has the potential to develop into a wider regional investigation. There is good sense in this: ISIL’s self-declared state crossed international boundaries; atrocities committed by the group may have occurred in both Iraq or in another state, or in circumstances where there could be uncertainty about which side of the border the acts occurred.

A wider regional approach does, though, pose its own challenges, given the ongoing war, the present relationship between the government of Syria and the international community, and indeed strong evidence that Syria has committed its own war crimes and crimes against humanity. This may be one of the reasons why para 11 has the caveat that, following such a request from a member state to investigate crimes committed outside of Iraq, it must first have the approval of the Security Council which may, in turn, request the Secretary-General to submit separate Terms of Reference with regards to the operation of the Team in that State. How this will operate in practice remains to be seen, but it must be hoped that ultimately it will be possible to investigate those who have committed crimes in either Iraq or Syria, either under this Resolution or as part of an envisaged but still nascent parallel UN investigation for Syria.

It would also be a laudable aim for those who are suspected to have encouraged, incited or given financial support to grave crimes from overseas (via social media or otherwise) to come within the ambit of the investigation.

Robust response from the international community

There appears to be widespread international support for the investigation. The barbarity and depravity of ISIL, seemingly bent on deliberately violating international law and human rights to the highest possible degree, calls out for such a robust and extensive investigation that will ultimately hold all those responsible to account wherever they now happen to be. It could be said that the barbarity of the group was in some ways a deliberate challenge to the very notion of international law and norms and, as such, calls out for the most robust response possible to uphold the primacy of universal standards of behaviour through international law.

The UK should be applauded for sponsoring the Resolution. More importantly it represents a triumph for the many survivors, such as Murad, who are determined that the end of hostilities in Iraq will bring about the start rather than the end of their quest for justice. The international community must do what it can to ensure that these survivors have their day and that perpetrators are brought to justice, wherever they may currently be.

Bringing ISIL to justice

Even should the conflict in Iraq one day be finally over, it will not be over for the hundreds of thousands of Iraqi citizens who will suffer the effects for many years to come, scarred by the brutality metered out by the so-called Islamic State in Iraq and the Levant, or ISIL. Thanks to the Security Council’s unanimous adoption of Resolution 2379, which requests the creation of an independent investigation team tasked with holding the terrorist group accountable for its actions in Iraq, there is increasing hope that the consequences will also be felt by those who perpetrated these crimes.

The announcement represents a triumph for campaigning lawyers such as Amal Clooney, who has mounted a tenacious high-profile campaign on behalf of her client Nadia Murad. Murad is part of Iraq’s Yazidi community who was captured by ISIL in Iraq in 2014. She suffered a horrific ordeal being raped and sold as a sex slave by ISIL and is now a goodwill ambassador for the UN. As a spokesperson, she has brilliantly and courageously turned the degradation inflicted upon her and others into a fierce and powerful anger and desire for justice. This, however, is only part of the tapestry of grave crimes committed by ISIL in Iraq against the populations under their control.

Framework: establishing the case against ISIL

Under the Resolution, the investigation team would collect, preserve, and store evidence of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group in Iraq. The Resolution lays out the basic, very serious case against ISIL: ‘Condemning the commission of acts by ISIL involving murder, kidnapping, hostage-taking, suicide bombings, enslavement, sale into or otherwise forced marriage, trafficking in persons, rape, sexual slavery and other forms of sexual violence, recruitment and use of children, attacks on critical infrastructure, as well as its destruction of cultural heritage, including archaeological sites, and trafficking of cultural property…’

Rightly, this preamble focuses on the criminal acts allegedly perpetrated by the group rather than on any ideological/religious views held by the perpetrators. The case is presented as a series of offences that constitute the most serious possible breaches of fundamental norms and rights. Indeed, the only express reference to religion is in relation to offences ‘motivated by religious or ethnic grounds’, recognising that it is particularly heinous for crimes to be committed because the victims are of a different religious or ethnic group to the perpetrators. The framework is set out thus: those under investigation will be assessed and judged for their alleged serious criminal acts and regardless of their ideological views and purported justifications. Indeed, such perspectives are irrelevant when it comes to assessing whether grave crimes have been committed.

The Resolution also indicates that all members of ISIL are potentially criminally responsible – holding ‘ISIL members accountable’ – though naturally there is reference to, and focus on, those who bear the greatest responsibility including ‘regional or mid-level commanders, and the ordering and commission of crimes’. Given the reverses and casualties suffered by the group, it will be interesting to see how many regional or mid-level commanders will ultimately be available for trial. This problem is compounded by the abundance of higher level commanders that are foreign fighters, operating under pseudonyms in areas where their true identities are not known to local communities. The focus might then shift to those who, although not even mid-level commanders in the traditional sense, enjoyed a significant level of autonomy and who committed particularly serious criminal acts. All are potentially accountable, none are immune.

Potential tensions: investigation, cooperation, safety

An evidence-gathering role for the investigative team is set out in para 2 as follows: ‘collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes… to the highest possible standards... to ensure the broadest possible use.’ This process will be a daunting one and it will be interesting to see how the material collected from social media sources is used in conjunction with primary evidence. Those perpetrating heinous acts in Iraq appeared to do so in as public a way as possible. Indeed, the publicising of them online became, in the twisted logic of the group, an instrument of propaganda so the prospect of using of such material to bring perpetrators to account is particularly apt. The use of platforms like Twitter and Facebook by those seeking to encourage, support and incite others to commit grave crimes through tweets and posts may also feature prominently. This would, though, require cooperation between investigators and the international companies ‘holding’ this electronic evidence, not all of whom are renowned for willing compliance with law enforcement agencies requests to yield data.

The importance of promoting the investigation throughout the world and working together with survivors is emphasised (para 3). This will also be a daunting task considering that large cities like Mosul – with an estimated population of over 600,000 in 2015 even after a large proportion of the population had fled – came under the control of the group. This will be a transnational task given the number of Iraqis forced to flee to other countries.

It is envisaged that Iraqi investigative judges, and other criminal experts, including experienced members of the prosecution services, will work on an equal footing alongside international experts (para 5). It will be interesting to see how well this cooperation develops. The recent precedents for Iraqi criminal justice are not all positive. For instance, the Iraqi High Tribunal – established under Iraqi national law to try Iraqi nationals or residents accused of genocide, crimes against humanity, war crimes or other serious crimes committed 1968-2003 – had many critics and included capital punishment as a sentencing option. There were also issues regarding the fairness of the proceedings, and concerning the security of judges and other parties involved in the cases. Indeed, a number of speakers from different member states endorsing the Resolution expressed an expectation that the investigation would operate within a framework respecting human rights and international law, and without capital punishment.

It also remains to be seen how much power, energy and resources the government of Iraq will be willing to extend to this investigation, particularly in a context of an ongoing conflict and with a country facing huge challenges in terms of rebuilding infrastructure and overcoming sectarian divisions within society. Indeed, one potential area of tension will be the extent to which an investigation into ISIL would put additional focus on such divisions.

There is also, perhaps, a certain latent tension between the primacy of an Iraqi government-led investigation on the one hand, and the need for international expertise on the team on the other. Paragraph 8 states ‘… the Team should ensure its Iraqi members benefit from international expertise on the Team, and make every effort to share knowledge and technical assistance with Iraq…’ For countries such as the UK, how such assistance would fit with the Iraqi record of implementing the death penalty remains unclear. Equally, para 9 encourages member states and intergovernmental organisations to provide appropriate legal assistance and capacity building to the government of Iraq in order to strengthen its courts and judicial system. It may be expected that considerable legal assistance and capacity building will be required to ensure that the capacity of the investigation is commensurate with the daunting challenges outlined above.

Interestingly, para 11 envisages that other member states in whose territory ISIL has committed acts that may amount to war crimes, crimes against humanity, or genocide, may request the investigation team to collect evidence of such acts. It follows that the investigation has the potential to develop into a wider regional investigation. There is good sense in this: ISIL’s self-declared state crossed international boundaries; atrocities committed by the group may have occurred in both Iraq or in another state, or in circumstances where there could be uncertainty about which side of the border the acts occurred.

A wider regional approach does, though, pose its own challenges, given the ongoing war, the present relationship between the government of Syria and the international community, and indeed strong evidence that Syria has committed its own war crimes and crimes against humanity. This may be one of the reasons why para 11 has the caveat that, following such a request from a member state to investigate crimes committed outside of Iraq, it must first have the approval of the Security Council which may, in turn, request the Secretary-General to submit separate Terms of Reference with regards to the operation of the Team in that State. How this will operate in practice remains to be seen, but it must be hoped that ultimately it will be possible to investigate those who have committed crimes in either Iraq or Syria, either under this Resolution or as part of an envisaged but still nascent parallel UN investigation for Syria.

It would also be a laudable aim for those who are suspected to have encouraged, incited or given financial support to grave crimes from overseas (via social media or otherwise) to come within the ambit of the investigation.

Robust response from the international community

There appears to be widespread international support for the investigation. The barbarity and depravity of ISIL, seemingly bent on deliberately violating international law and human rights to the highest possible degree, calls out for such a robust and extensive investigation that will ultimately hold all those responsible to account wherever they now happen to be. It could be said that the barbarity of the group was in some ways a deliberate challenge to the very notion of international law and norms and, as such, calls out for the most robust response possible to uphold the primacy of universal standards of behaviour through international law.

The UK should be applauded for sponsoring the Resolution. More importantly it represents a triumph for the many survivors, such as Murad, who are determined that the end of hostilities in Iraq will bring about the start rather than the end of their quest for justice. The international community must do what it can to ensure that these survivors have their day and that perpetrators are brought to justice, wherever they may currently be.